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No reason for Harper to be surprised by Nadon debacle

The government has expressed "genuine surprise" at the decision to disallow Marc Nadon's appointment to the Supreme Court, but it should have seen it coming.

Nearly two weeks after the decision to block Justice Marc Nadon's appointment to the Supreme Court, the government has still yet to announce next steps. (Adrian Wyld / THE CANADIAN PRESS)

By Irwin Cotler

Thu., April 3, 2014

When the Supreme Court found Justice Marc Nadon ineligible for one of its Quebec seats, the government should have welcomed the court’s authoritative pronouncement and immediately put in motion a plan to fill the vacancy that has existed since August 2013 and ensure adequate Quebec representation on the nation’s highest court. Instead, the statements of the prime minister and justice minister in the wake of the rejection of their Supreme Court nominee are as puzzling as they are problematic, as confusing as they are contradictory.

To begin, the government expressed its “genuine surprise” at the decision, suggesting this outcome was not foreseeable. Yet, by seeking legal opinions on the question — and subsequent efforts to retroactively amend provisions of the Supreme Court Act to prospectively authorize Nadon’s candidacy — the government thereby itself acknowledged that the matter was not clear-cut. Clearly, the possibility of this outcome was present in the mind of the government during the process; yet, it took the risk to proceed in this way and has only itself to blame for doing so.

Where the matter becomes particularly puzzling is in the statement of the prime minister himself this Tuesday that “Obviously it's a big surprise to discover that there is one completely different rule for Quebec than for the rest of Canada.” It is difficult to see how this can come as a surprise when the Supreme Court Act has had, since 1875, separate provisions for Quebec judges in section 6, labelled “Représentation du Québec,” and the prime minister’s own press release upon Justice Nadon’s appointment indicates a legal opinion was sought relative to his eligibility.

Similarly, the justice minister’s echoing statements of surprise are in fact themselves surprising given his own acknowledgement of the novelty of the situation — in his words, “[t]here has not been an appointment from the Federal Court directly to the Supreme Court of Canada from Quebec.”

The prime minister in Question Period asserted this week that all parties agreed during consultations regarding Nadon’s eligibility. If one assumes he is referring to the work of the selection panel, its operations are confidential; I was not a part of that process for this cycle and have no knowledge of what was discussed. I would assume the same is true for the prime minister, who does not serve on such panels. By breaching confidentiality the process becomes politicized in a way that is wholly undesirable and one would expect the prime minister and justice minister to show great restraint in this regard.

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If the references of the prime minister and justice minister regarding consultation are to the public ad hoc hearing wherein Justice Nadon faced questions from parliamentarians — on which I sat — there is no issue of unanimity — there were no votes nor should there be. If the suggestion is somehow that those with concerns should use that hearing to voice them — after the nominee has already been announced by the justice minister — the unacceptable resulting politicization would tarnish the court’s excellent reputation and the justice minister himself cautioned against this at the hearing’s outset.

Perhaps most confusing and contradictory about the government’s response to this whole affair is its insistence that “the government will respect the letter and spirit of this ruling,” yet it refuses to rule out Nadon’s reappointment, which could be accomplished by, for example, something as unadvisable as first appointing him to a judgeship in Quebec and then appointing him to the Supreme Court of Canada.

Moreover, it is tough to reconcile respect for “the letter and spirit of this ruling” with subsequent statements of the justice minister that the ruling creates “a double standard” or that somehow the court’s timing is to be criticized for issuing the ruling during the Quebec election. Regardless of the government’s opinion on the court’s ruling or timing, it is the law of the land and the government should show respect for the work of the nation’s highest court — and not itself engage in the type of politicization it so readily denounces of the opposition.

In sum, the real surprise is that as we approach two weeks since the decision was released the government has yet to announce a next step or whether a new justice will be nominated — let alone in place — before the court’s spring session begins on April 14 — or if Quebecers will go an entire year being under-represented at the Supreme Court, being forced to wait until the fall term commences in October, with yet another Quebec vacancy looming on the horizon. Fortunately, there are outstanding Quebecers who are eligible for appointment and would serve our nation’s highest court — and the country as a whole — with great distinction.

Irwin Cotler is the former Minister of Justice and Attorney General of Canada. He is a Professor of Law (Emeritus) at McGill University.

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